Friday, October 12, 2012

President Obama has done what Congress
has not — extend whistleblower protections to national security and intelligence
employees.

A Presidential Policy Directiveissued Wednesday says
employees “who are eligible for access to classified information can effectively
report waste, fraud, and abuse while protecting classified national security
information. It prohibits retaliation against employees for reporting waste,
fraud, and abuse.”

With this directive, Obama hands national security and intelligence community
whistleblowers and their advocates an important victory in their frequently
frustrating efforts to expand protection against retaliation for federal
employees who expose agency misconduct.

Protection for intelligence and national security workers was not included,
as advocates had hoped, in the Whistleblower Protection Enhancement Actthat passed
the House last month and now awaits action in the Senate. Retaliation can come
in different forms, including dismissals, assignments or revocation of security
clearances.

Obama instructed agencies, including the CIA, to establish a review process,
within 270 days, that allows employees to appeal actions in conflict with the
directive that affect their access to classified information.

Angela Canterbury, director of public policy for the Project on
Government Oversight, an advocacy group, said in an e-mail that
“this unprecedented Presidential Policy Directive is leveled at the endemic
culture of secrecy in the intelligence community (IC) and the dearth of
accountability it fosters. The directive prohibits retaliation for protected
disclosures by IC employees; prohibits retaliatory actions related to security
clearances and eligibility for access to classified information and directs
agencies to create a review process for related reprisal claims; mandates that
each intelligence agency create a review process for claims of retaliation
consistent with the policies and procedures in the Whistleblower Protection Act
(WPA); provides significant remedies where retaliation is substantiated,
including reinstatement and compensatory damages; and creates a review board of
Inspectors General (IGs) where IC whistleblowers can appeal agency
decisions.”

Advocates say these measures not only protect free-speech rights but also
make unauthorized leaks of sensitive information less likely by creating a
proper avenue for whistleblowers.

But for all it does, the directive “only is a landmark breakthrough in
principle,” according to another organization, the Government Accountability
Project (GAP).

“Until agencies adopt implementing regulations, no one whose new rights are
violated will have any due process to enforce them,” said Tom Devine, GAP’s
legal director. “Further, there are only false due process teeth on the
horizon.” Regulations to enforce whistleblower rights will be written by the
same agencies that routinely are the defendants in whistleblower retaliation
lawsuits, according to GAP.

Both Canterbury and Devine praised Obama’s action, while calling on Congress
to make his order the law.

“President Obama has kept his promise to national security whistleblowers
. . . ,” Devine said in an e-mail. “This law is no
substitute for congressional action to make the rights permanent, comprehensive
and enforceable through due process teeth.”

Obama’s promise was in the administration’s September 2011 “National
Action Plan” for transparency and open government. It said “if
Congress remains deadlocked, the Administration will explore options for
utilizing executive branch authority to strengthen and expand whistleblower
protections.”

National security whistleblower protections are not in the legislation now
before Congress because the Republican leadership of the House Permanent Select
Committee on Intelligence (HPSCI) opposed them.

Committee Chairman Mike Rogers (R-Mich.) “dragged his feet, never held a
hearing, and never fully explained his concerns,” Canterbury said. “This put the
House co-sponsors in a tough spot. They ultimately removed all of the
intelligence-related provisions so that Rogers would relinquish his hold and
they could move the bill.”

Under Rogers, according to Devine, “for two years HPSCI has refused to engage
in serious discussions on national security whistleblower rights, either with
the public or even Republican offices seeking a consensus.”

Rogers’s committee staff did not respond to requests for comment.

Though happy about Obama’s directive, whistleblower advocates are not totally
pleased with the way the administration has, in some cases, treated
whistleblowers. Canterbury said she is “truly gratified and grateful” for the
directive, but noted “we also have been critical of this Administration’s
prosecutions of so-called leakers under the Espionage Act. We have raised
concerns about the possible infringement of rights and the chilling effect on
would-be whistleblowers of the aggressive prosecutions and certain
post-WikiLeaks policies.”

Obama’s directive does a lot to balance
those concerns. At the same time, Canterbury, Devine and other advocates will
continue to push Congress to follow the president’s lead by approving
legislation with national security whistleblower protections.

“The President has done his share with this landmark breakthrough,” Devine
said. “Congress needs to finish what he started.”